The Our Lady of Hope Lawsuit, introduction

OK, off to the races.

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The Roman Catholic Bishop of Springfield sued the City of Springfield in January over  the designation of Our Lady of Hope church as a  historic district. This was moved to federal court in February. Then in mid-Sept. a short article appeared in the Springfield Republican stating that the entire matter had been taken "under advisement" by Judge Michael Ponsor.  Prior to this, the lawsuit sat pretty much dormant all summer. At least, I thought it was dormant.

When I looked into the case via PACER (the way that the general public finds out about public documents in federal court cases)  I was surprised to see how much activity had taken place since February. No less than 32 court papers have been filed, many of them multi-part briefs arguing some very fine points of law. Apparently, both sides really want to win this one.

It's clear that the city wants to win because they submitted a total of 82 substantive pages of arguments. Not to be outdone, "Smilin' Jack" Egan, Esq. submitted 162!

Way to go, Jack! Talk about "making a Federal case out of it"!

I, for one, go to the oratory for an hour of adoration secure in the knowledge that Jack is leading the charge against these vile violators of our freedom of religion, speech, assembly and expression! Or, I suppose it could be, as the city attorney says, that

"Plaintiff presents a grab bag full of allegations designed to have the Court, for federal constitutional purposes, review the OLOH Ordinance under strict scrutiny".

We shall see.

At any rate, the 162 pages of arguments did give me pause.  I don't remember any special collection for Mr. Egan's law firm. Maybe a bill is on the way?

I suppose the first thing to do is outline the case.

Although the Bishop submitted 12 allegations, many of the State charges mirror the Federal ones. Plus, the last count is for declaratory judgment, which is not a count but a request for relief.

In a previous post, I have listed all 12 charges.

In the coming weeks and months I will fill out this picture by presenting the city's answers to the charges. These responses are woven into a very large paper called "City Opposition" (Document 25.1, 25.2, and 25.3).  The charges are given below in my own number format.

I'm trying to present this as cleanly as possible, but the job is difficult. Mr. Egan's charges are densely written and while the City response is much clearer, it, too, backtracks and loops upon itself in unpredictable ways. What I have tried to do is separate the main allegations of the Bishop into smaller sections; and then answer each section with the City's responses as concisely as possible.

I have used the City's own words without any paraphrasing, although I have made abundant use of ellipses to indicate editing. My edited responses from the City papers are not necessarily chronological, i.e, some of the responses to the earlier charges may be taken from later pages in the City's brief, if the quotes are apt.  The object is to show the most germane points of the City's responses  to the charges of the Bishop.

Full text of footnotes are not included, but they are indicated in this text, so that a given footnote can easily be found in the actual court documents, which are being posted on the WMC main web site. These footnotes are interesting.  Everything from the venerable "wall of separation" Danbury reference to frequently cited Supreme Court decisions (Smith, many NYC church decisions, Yoder).

Of special interest are decisions in the historic preservation area; this is not the first time that the Bishop and City's historic commission have tangled.

The RLIUPA issues can be achingly complex.  For those with a lively interest I recommend Marci Hamilton's "God vs. The Gavel" which gives a good overview of the federal law which is a large part of this case. Without question, if the Bishop can convince the judge to apply strict scrutiny and RLIUPA claims, his case is greatly enhanced.

The City argues that strict scrutiny should not apply and says that their historic preservation ordinance should stand on its own merit. They claim that the Bishop has "a heavy burden" to show that the historic preservation law is invalid.  Indeed, they claim that he brings a "facial challenge" that, if successful, would have the effect of invalidating the law across the commonwealth.

It will be noted that the last charge, "Violation of the Massachusetts Civil Rights Act" (# 11), is answered first, during the City's recitation of background facts.  The City, citing procedural issues, points out that it is not a person, and that only persons can be sued under the Act.  For this reason it asks for summary judgment on the claim.

Other than that claim, the other 10 are accounted for in my outline.

I divide the 10 charges into non-RLUIPA claims (7), and the RLUIPA claims (3). I include the Violation of Due Process charge together with the Violation of the Equal Protection of the Law charges because they are so close in meaning.

non-RLUIPA claims

Section 1 - Violation Of Free Exercise Of Religion And Establishment Clause, counts 1 (federal) and 2 (state)

Section 2 - Violation Of Freedom Of Speech, Expression And Assembly 
counts 3 (federal) and 4 (state)

Section 3 - Violation Of Equal Protection Of The Laws By Discrimination, counts 5 (federal) and 6 (state) plus count 7, Violation Of Due Process 

RLUIPA claims

Section 4
a- Discrimination on the Basis of Religion under RLUIPA, count 8
b- Substantial Burden on Religious Exercise under RLUIPA, count 9
c- Unreasonably Limitation Of Religious Expression Under RLUIPA, count 10

* - Violation of the Massachusetts Civil Rights Act, count 11

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IOICC - Love In Action

 “Their prayers have been answered. Parishioners of Immaculate Conception Parish in the Indian Orchard section of this city will be able to “open wide” their church doors for the foreseeable future as Springfield Bishop Timothy A. McDonnell announced Sept. 18 that the parish, which had been slated for closure last year, could remain open”.

So said the diocesan news release. 

McDonnell said that “Based on the increased participation in parish life shown over the past year, and in light of the proposals to provide for the future…I have directed that the Parish of the Immaculate Conception in Indian Orchard remain in existence…..the efforts undertaken in the past year have indicated a willingness to support the parish by participation in its sacramental life and its ministries…”

The diocesan press office said that the parish responded to the Bishop’s challenge, and apparently, that made all the difference. According to the press office, McDonnell stressed that “…their future, like that of all Catholic parishes, will be determined by remaining viable and active communities of faith.”

Without question the parishioners of IOICC should be proud of turning their death sentence around and perhaps even grateful to the Bishop for the reprieve. Kudos to them for what they accomplished, which was predicted in this space on October 18, 2009 (see # 5).

But, as usual, the tone of the diocesan news releases raises questions. They read as if Elliot St. has no connection to the events which sparked the reversal. The chancery seems unable to express a thought unless in code.

For example, the official story implies that IOICC was a lackluster parish until it was “challenged” by McDonnell to do better. Then, IOICC got 50 or 60 new families involved, balanced the books, increased their sacramental participation and now............all better.

Is that really what happened?

Why does the Bishop bring up the “sacramental life” of the parish, as if that were secured now, and lacking before? If the sacramental life of the parish has changed in any way, this is the first I’ve heard of it. It would be hard to find more devout and faithful Catholics than those who populate Polish communities. And, what does “sacramental life” mean, anyway?

McDonnell supposedly now views IOICC as one of the “viable and active communities of faith”.  Does that mean that they were not viable and active before the fall of 2009? That's pretty hard to believe, in view of the 400,000 dollars they raised for an elevator in recent years. What was it, exactly, that changed? How did they suddenly become “viable” on the strength of a significant but still small increase of 50 or 60 families?

In more code, McDonnell cites “increased participation in parish life” as another of his motivating factors.  What does that mean? Again, there was no suggestion before the closing that parish activities were less attended than elsewhere. As a matter of fact, my hunch, based on several visits, is that they participated more, not less, than other parishes. Granted, this opinion is only based on a few visits.

On the other hand, how much does this reversal have to do with money?  The Bishop doesn’t say, and the diocesan press release doesn't say, either.

Am I the only one who notices that 50 or 60 new families would suggest around 50 or 60K additional  per annum in the parishes bank account? I doubt that is enough to balance the books, though it certainly is good news.  Even this little fact the Bishop is unable to mention, I guess because it concerns the very secular and yet very real topic of (ugh) money.

Let’s be real.

The reversal must have included factors other than faithfulness, sacraments, or ministries.

Fact: the parishioners were royally p*ss*d off at their closing in the fall of 2009 because they had just spent 400K of their own money (with the Bishop’s approval) within the last few years for elevator improvements.  What a colossal blunder that oversight was.  Did the Bishop say that he was wrong? Nope.  Did he even acknowledge the mistake? Nope.  Does it matter? Absolutely.

It matters just as much as the fact that around 200K in rental fees from the City of Springfield stopped coming into the IOICC yearly budget just as a new pastor was being appointed.  The new pastor was not told of the implications of the shortfall prior to his appointment, a shortfall which would clearly cripple his ministry, and maybe even drag the parish down toward financial ruin.  Can you blame him for being angry? Does this explain anything about why he went shoulder-to-shoulder with the parishioners in demanding a reversal?

Needless to say, none of this back story complicates Diocesan press releases.

Then, there's the fact that the pastor is reported to be moving on.  This is common knowledge at IOICC, announced from the pulpit, I am told, and yet this information is missing in action when it comes to reporting. Doesn't the Diocese want to tell the whole story?  Apparently not. But when important facts are left out, people are bound to speculate, and this chatter does not always put the Diocese in a favorable light. Can you blame those who are speculating?

It would be hard to make a case that the addition of 50 or 60 families are going to be the linchpin that turns around the loss of the 200K a year from the City of Springfield rentals.  Maybe that case can be made, maybe not.  Maybe the proposed daycare program at the former school will blossom, maybe not. Maybe more information about the plans of the pastor will come out. All of that remains to be seen.

Meanwhile, all of this code just gets in the way for those who want and deserve truthful explanations for the reversal. In the absence of a straight-forward explanation from the chancery that rings true, let's try to break this code.

The monetary situation, some of which I have outlined, is certainly important. The elevator incident, too. But, more important by far was the simple fact that when they were closed, IOICC refused to die.

IOICC parishioners showed fund-raising ability, they showed smarts in putting up billboards, and they showed guts in picketing on the Bishop’s front lawn. All of this was in fidelity to Catholic principles that a parish is forever, and that the people, not the Bishop, own the parish.  They made it clear that they were righteously angry, and that they were not going away. 

In short, they challenged the Bishop, not the other way around.  And, the Bishop folded.

It seems to this observer that this is the lesson of IOICC, and it’s one that other parishes need to understand, and take to heart.  Bishops are used to making parishes react, and here, for once, the parish made the Bishop react. They did this in an intelligent yet passionate way by choosing non-violent direct actions to make their case. This is nothing less than love in action, and it is extremely powerful.

The reversal would seem to have little or nothing to do with sacramental integrity, faithfulness, or ministries. On the other hand, it would seem to have a great deal to do with parishioner's integrity, with their faithfulness, with their ministry to be the People of God in the place where they live.

Let’s look at another aspect of this controversy.  When the announcements were made about the reversal, we heard from the Diocesan press office:
Dupont said the need for pastoral planning in the diocese was something that could not be ignored. “Suffice it to say, bishop would have preferred to close no parishes, but the current reality in western Massachusetts left us no choice.”

Here we have a telling admission, namely, that “pastoral planning” (as understood by Elliot St.) is a reaction.  The Diocese put it off as long as possible. "Pastoral planning" means down-sizing, pure and simple.  It is not about pastoral care.  It is not about planning on an ongoing, dynamic basis, and working with the people in the pews to make the church better.  Diocesan pastoral planning, is about management and reaction. The flip side to this would be collaboration between laity and clergy about what to do.....a discussion in which the outcome is not known beforehand.

This admission about down-sizing is also a prominent feature of the lawsuit in federal court in which the Bishop is trying to throw out the designation of Our Lady of Hope as a historic district. In much the same language John Egan, lead attorney for the Diocese, argues that, quote:
“Over the last several years, the Diocese has gone through the painful process of pastoral planning. I describe the process as painful because it resulted in parish closings. These closings are the result of a decline in the number of priests available to serve the Catholic people in the Diocese and a decline in the Catholic population in Western Massachusetts.”

There you have it.  Fewer priests, fewer parishes, a la the Mullin Report.  Also, the implication that the only reason “pastoral planning” is even on the radar is that the numbers are down all around. Otherwise, it is clear, THEY WOULD NOT BE DOING IT.

This  sort of “pastoral planning” (better known as management-by-crisis) is not supported by canon law, natural law, or any other doctrine that you might like to bring up. It is the result of a corporate culture (and an old-fashioned corporate culture at that), and it is a top-down reaction, both of which continue to characterize Diocesan attitudes far more than the quaint belief in a community founded by Jesus Christ.

Is it any wonder that they continue to lose the parishioners who used to be in the churches at the same time that they convert those same churches into empty real estate parcels?

The Gospel According To John Egan

Count 1-     Violation of the United States Constitution. Free Exercise of Religion and Establishment Clauses: First and Fourteenth Amendments (42 U.S.C. §1983)

Defendants, acting under color of state law, have deprived and continue to deprive the RCB of its right to free exercise of religion - as secured by the First Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment - by discriminating against the RCB because of its religious character and by inhibiting its right to freely exercise its religious faith.
Defendants, acting under color of state law, have violated the establishment clause of the - as secured by First Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment - in that the subject single-parcel ordinance does not have a secular purpose, its principal or primary effect inhibits freedom of religion, and it fosters an excessive government entanglement with religion.
Defendants' actions were purposely taken with deliberate indifference to the RCB's constitutional and legal rights.

Count 2-     Violation of the Massachusetts Constitution. Freedom of Religion and Conscience, and Establishment Clauses: Art. 46, §1 of the Massachusetts Declaration of Rights of the Amendments to the Massachusetts Constitution.

Defendants, under color of law, have deprived and continue to deprive the RCB of its right to freedom of religion and conscience - as secured by Part the First, A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts, Amendment Article 46, §1, by discriminating against the RCB due to its religious characer and by inhibiting its right to freely exercise its religious faith and conscience.
Defendants, acting under color of state law, have violated the establishment clause of the Massachusetts Constitution in that the subject single-parcel ordinance does not have a secular purpose, its principal or primary effect inhibits freedom of religion, and it fosters an excessive government entanglement with religion. G.L. Const. Amend. Art. 46, §1.
Defendants' actions were purposely taken with deliberate indifference to the RCB's constitutional and legal rights.

Count 3-     Violation of the United States Constitution. Freedom of Speech, Expression and Assembly: First and Fourteenth Amendments (42 U.S.C. §1983)

Defendants, under color of state law, have deprived and continue to deprive the RCB of its right to speak, express and assemble on matters of religion - as secured by the First Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment - by discriminating against the RCB based on the religious nature of its speech and expression, by inhibiting its right to freely speak, express its faith to its congregants and to the community, and inhibiting its freedom of assembly, and by applying a vague and unlawful single-parcel ordinance against them.
Defendants' actions were purposely taken with deliberate indifference to the RCB's constitutional and legal rights.

Count 4-     Violation of the Massachusetts Constitution. Freedom of Speech, Expression and Assembly: Art. 16 of the Massachusetts Declaration of Rights, as amended by Art. 77 of the Amendments to the Massachusetts Constitution.

Defendants, under color of state law, have deprived and continue to deprive the RCB of its right to Freedom of Speech - to speak and communicate to others on matters of religion - as secured by the Massachusetts Constitution - by discriminating against the RCB based on the religious nature of its expression, and by inhibiting its right to freely speak and express its faith to its congregation and to the community, and inhibiting its freedom of assembly, and by applying a vague single-parcel ordinance against them.
Defendants' actions were purposely taken with deliberate indifference to the RCB's constitutional and legal rights.

Count 5-     Violation of the United States Constitution. Equal Protection: Fourteenth Amendment (42 U.S.C. §1983)

Defendants, acting under color of law, have deprived and continue to deprive the RCB of its right to equal protection of the laws - as secured by the Fourteenth Amendment to the United States Constitution - by discriminating against the RCB in the adoption, enforcement and application of its ordinances.
Defendants' actions were purposely taken with deliberate indifference to the RCB's constitutional and legal rights.

Count 6-     Violation of the Massachusetts Constitution. Equal Protection: Arts. 1 and 10 of the Massachusetts Declaration of Rights, of the Amendments to the Massachusetts Constitution.

Defendants, under color of state law, have deprived and continue to deprive the RCB of its right to equal protection of the laws - as secured by the Massachusetts Constitution - by discriminating against the RCB in the application of its Code of Ordinances.
Defendants' actions were purposely taken with deliberate indifference to the RCB's constitutional and legal rights.

Count 7-     Violation of the United States Constitution. Due Process: The Fourteenth Amendment (42 U.S.C. §1983)

Defendants,  under color of state law, have deprived and continue to deprive the RCB of due process of law - as secured by the Fourteenth Amendment to the United States Constitution - by denying the RCB use of its property based on an irrational and discriminatory motivation.
Defendants' actions were purposely taken with deliberate indifference to the RCB's constitutional and legal rights.

Count 8-     Violation of the Religious Land Use and Institutionalized Person Act of 2000. Discrimination on the Basis of Religion (42 U.S.C. §2000cc et seq.)

Defendants, under color of law, have deprived and continue to deprive the RCB of its right to be free from religious discrimination - as secured by the Religious Land Use and Institutionalized Person Act - by treating them on less than equal terms as a nonreligious assembly or institution, by imposing and implementing a land use regulation that discriminates against them on the basis of religion, and by unreasonably limiting RCB's religious assemblies, institutions, and structures.
Defendants' actions were purposely taken with deliberate indifference to the RCB's constitutional and legal rights.

Count 9-     Violation of the Religious Land Use and Institutionalized Person Act of 2000. Substantial Burden on Religious Exercise (42 U.S.C. §2000cc et seq.)

Defendants, under color of state law, have deprived and continue to deprive the RCB of its right to the free exercise of religion - as secured by the Religious Land Use and Institutionalized Person Act - by imposing and implementing a land use regulation that imposes a substantial burden on the RCB's religious exercise.
Defendants' actions were purposely taken with deliberate indifference to the RCB's constitutional and legal rights.

Count 10-     Violation of the Religious Land Use and Institutionalized Person Act of 2000. Unreasonable Limitation (42 U.S.C. §2000cc et seq.)

Defendants, under color of state law, have deprived and continue to deprive the RCB of its right to the free exercise of religion - as secured by the Religious Land Use and Institutionalized Person Act - by imposing and implementing a land use regulation that unreasonably limits religious expression within a jurisdiction. 
Defendants' actions were purposely taken with deliberate indifference to the RCB's constitutional and legal rights.

Count 11-     Violation of the Massachusetts Civil Rights Act, G.L.c. 12, §11I

By their actions, the defendants have, by its coercive and intimidating actions in interfering with and regulating the internal religious affairs and resources of the RCB, violated the RCB's rights to freedom of religion, conscience, assembly, speech and expression, and the unlawful establishment of religion, under the Constitutions of the United States and Massachusetts.
Defendants' actions were purposely taken with deliberate indifference to the RCB's constitutional and legal rights.

Count 12-     Declaratory Judgment G.L.c.231A

The RCB, for the reasons alleged, submits that the court should declare the defendant's actions in approving, enacting and enforcing the Our Lady of Hope Historic District Ordinance are unlawful and contrary to the Constitutions of the United States and Massachusetts, and other provisions of federal and state law.
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This post is about the charges (detailed above) that Bishop McDonnell is leveling at the City of Springfield, as drawn up by Diocesan Attorney Jack Egan. The case is being argued for the Bishop by Egan,  Edward McDonough Jr. and Kevin Withers.

A link below goes to a pdf. of the original civil action filed in Hampden Superior Court on Jan. 21, 2010:
Roman-Catholic-Diocese-lawsuit-vs-City-of-Springfield-re-Our-Lady-of-Hope-Historic-District

The case was removed a few weeks later to the U.S. District court because of the federal implications.

For providing a summary of the cogent arguments,  the Bishop's complaint is compressed a little and divided into non-RLUIPA claims (7), and the RLUIPA claims (3).

The Violation of Due Process charge together is put together with the Violation of the Equal Protection of the Law charges because they are so close in meaning.

This leaves us with 4 sections.  It is this set of 4 sections which is referred to and fleshed out in the large post titled Summary of "City Opposition" Paper 25.


_____
non-RLUIPA claims

Section 1 - Violation Of Free Exercise Of Religion And Establishment Clause, counts 1 (federal) and 2 (state)

Section 2 - Violation Of Freedom Of Speech, Expression And Assembly 
counts 3 (federal) and 4 (state)

Section 3 - Violation Of Equal Protection Of The Laws By Discrimination, counts 5 (federal) and 6 (state) plus count 7, Violation Of Due Process 

RLUIPA claims

Section 4
a- Discrimination on the Basis of Religion under RLUIPA, count 8
b- Substantial Burden on Religious Exercise under RLUIPA, count 9
c- Unreasonably Limitation Of Religious Expression Under RLUIPA, count 10

N. B. - count 11 Violation of the Massachusetts Civil Rights Act,  is apparently no longer being contested, see Paper 32.